Legal FAQs for REALTORS®
Fair Housing

What is a "disability" under the federal Fair Housing Act? (August 21, 2013)

"Disability" means a person with physical or mental impairment which substantially limits one or more of a person’s major life activities; a record (history) of the impairment; or being regarded as having the impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The term does not include current illegal use or addiction to a controlled substance, but could protect persons who are recovering from substance abuse.

If, at the time of application or renewal, the residents have a child less than six months old and such child would cause the owner's maximum to be exceeded, can the owner refuse to lease on that basis? (updated Jan. 1, 2002)

No. However, if an owner leases to residents whose newborn is older than six months at the time of application or renewal and the owner's maximum is exceeded because of such newborn, the owner must treat all other new and renewal residents the same, as a general rule.

What is a reasonable modification? (August 21, 2013)

A reasonable modification means any change to the public or common use areas of a building or any change to a dwelling. Under the federal Fair Housing Act, discrimination because of a disability of the tenant, a person residing in or intending to reside in the property after it is rented or made available, or any person associated with the tenant, can include a refusal to permit, at the expense of the person having a disability, a reasonable modification of an existing premises occupied or to be occupied by the person if the modification is necessary to afford the person full enjoyment of the premises of a dwelling.

When reasonable, a property owner may condition permission for a modification on the tenant agreeing to: (1) restore the interior of the premises to the prior condition if reasonable to do so, reasonable wear and tear excepted; (2) provide a reasonable description of the proposed modification, as well as reasonable assurances that the work will be done in a workman-like manner and that any required building permits will be obtained; or (3) pay into an interest bearing escrow account, over a reasonable amount of time, a reasonable amount of money not to exceed the costs of restoration, if necessary to ensure funds are available for restoration. The interest accrues to the benefit of the tenant. An owner cannot increase the security deposit. Note: A resident cannot be charged for restoring common area modifications.

Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can a property owner require the tenant to pay an additional deposit as a condition for allowing an assistance animal in the dwelling? (August 21, 2013)

No. The property owner cannot require the tenant to pay an additional deposit as a condition for allowing the assistance animal in the dwelling. However, the tenant would still be legally responsible for any damage caused by such an animal.

Is an owner required to ask for date-of-birth proof for all infants living in the dwelling to determine whether the owner's maximum or the TCHR newborn policy have been violated? (updated Jan. 1, 2002)

No. The owner, at the owner's discretion, may require proof of the child's date of birth; but the owner does not have to do so. Normally, an owner may rely on the oral or written statement of an adult resident that an infant is a certain age-unless of course the owner has good reason to believe they are not telling the truth.

What is a reasonable accommodation? (August 21, 2013)

A reasonable accommodation is a change in rules, policies, practices, or services that is feasible and practical under the circumstances. Under the federal Fair Housing Act, discrimination because of a disability of the tenant, a person residing in or intending to reside in the property after it is rented or made available, or any person associated with the tenant, can include a refusal to make a reasonable accommodation in the rules, practices, or services if necessary to afford the person equal opportunity to use and enjoy a dwelling. A property owner must grant a tenant’s request for a reasonable accommodation unless the request is (1) unduly burdensome, a fundamental alteration of the landlord's program, or there is another accommodation that is just as reasonable; or (2) the tenant poses a direct threat to the health or safety of other residents or when the tenancy would result in substantial physical damage to the property of others.

The owner of the rental property I manage wants to limit the number of people who can live in the property. Will such a policy violate fair-housing laws? (Updated July 17, 2015)

Possibly. A property owner who tries to impose limits on families with children may be violating fair-housing laws that protect familial status.

The U.S. Department of Housing and Urban Development says an occupancy policy of two people per bedroom can be reasonable, but other factors should be considered, including the size and number of bedrooms, the age of the children, and the configuration of the unit.

You should ensure that your occupancy policy is consistent and applies to all occupants and rental applicants. For example, you can’t refuse to rent to one family because they have children or demand that a tenant with a baby on the way move to a larger unit.

A tenant has requested that she be allowed, as a reasonable accommodation for her severe depression, to have an emotional support animal in the property. The animal she would like to bring in is a pit bull. The property owner has heard terrible things about pit bulls, like how dangerous they are and does not want that type of dog in the property. Can the property owner reject this request? (August 21, 2013)

Possibly, but not without an assessment of whether the accommodation is needed and reasonable. After receiving such a request, the property owner must consider:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal?

If the answer to question (1) or (2) is "no," then the federal Fair Housing Act does not require a modification to a property owner's "no pets" policy, and the reasonable accommodation request may be denied.

If the answers to questions (1) and (2) are "yes," the federal Fair Housing Act requires the property owner to make a reasonable accommodation to a "no pets" policy, unless doing so would impose an undue financial burden or would fundamentally alter the nature of the housing provider's services.

The request for the accommodation may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal's actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.

Does the owner's occupancy standard have to be at least two-persons-per-bedroom for non-families? (updated Jan. 1, 2002)

No. The two-persons-per-bedroom occupancy standard applies only to families. When rental applicants or renewal residents are not a family with the meaning of the fair housing laws, the owner is free to adopt stricter occupancy standards, for example: (1) only one adult per bedroom, (2) only one adult per dwelling, (3) only one married couple per dwelling, (4) no unmarried adults in the same bedroom, (5) unmarried adults only if they are related, etc.

What does "familial status", one of the protected classes under the federal Fair Housing Act, include? (August 21, 2013)

"Familial Status" is defined as any family in which one or more individuals (who have not attained the age of 18 years) live with a parent, a legal custodian, or a designee of the parent or legal custodian, with the written permission of the parent or legal custodian.The protections against discrimination also apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years.

Due to a disability, a tenant requests an assistance animal as a reasonable accommodation. Can the property owner require the tenant to provide documentation evidencing the need for an assistance animal? (August 21, 2013)

It depends. One the request has been made, if the tenant's disability is known or readily apparent to the property owner, but the need for the accommodation (the assistance animal) is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation. However, if a person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester's disability or the disability-related need for the accommodation.

Again, once the request has been made, if the tenant's disability is not obvious, a property owner may request information necessary to verify that the person meets the federal Fair Housing Act's definition of "disability" (i.e. has a physical or mental impairment that substantially limits one or more major life activities), describes the needed accommodation, and shows the relationship between the tenant's disability and the need for the requested accommodation.

A prospective tenant learns from a neighbor that the former tenant was infected with the HIV virus. The prospective tenant contacts the property manager to inquire about whether this is true. Is the property manager required to disclose such information? (August 21, 2013)

No. The federal Fair Housing Act prohibits agents from making unsolicited disclosures concerning whether sellers or property occupants have tested positive for HIV or have been diagnosed with AIDS. Additionally, the Texas Real Estate Licensing Act (TRELA) states that licensees shall have no duty to inquire about, make a disclosure related to, or release information related to whether a previous or current occupant of real property had, may have had, has or may have AIDS, HIV-related illness or HIV infection.

The National Association of REALTORS® provides guidance on how to respond to an inquiry like this and suggests stating: “It is the policy of our firm not to answer inquiries of this nature one way or the other since the firm feels that this information is not material to the transaction. In addition, any type of response by me or other agents of our firm may be a violation of the federal fair housing laws. If you believe that this information is relevant to your decision to buy/rent the property, you must pursue this investigation on your own.”

Does an owner have to rent to applicants with children if the applicants plan to have their own children live with them and also plan to have the dwelling occupied by (1) another child for whom the applicants are not the parent, guardian, legal custodian, or person applying for such status, or (2) another adult who is not the parent, guardian, or legal custodian (or person applying for such status) of the children? (updated Jan. 1, 2002)
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Whether the other adult or unrelated child can be lawful reason for not renting to the applicants in the above situation depends on the owner's policy on renting to unmarried adults.
For example, an owner may lawfully have a policy of not renting to adult roommates unless they are married (by marriage certificate or common law) and not renting to children unless they are living with their parent, guardian, legal custodian, or person applying for that status. Therefore, when a family applies to rent and they want to include such extra adults or children (who are not truly part of the family under fair housing laws), the owner can refuse to rent if the residents insist on having such extra adult or child live with them. Of course, the owner must be willing to rent to the family if such extra adult or child are not going to be included as authorized occupants of the dwelling. On the other hand, if the owner has a policy of renting to unmarried adult roommates and not renting to children unless they are living with a parent, etc., the inclusion of the extra adult would not violate the owner's policy; and therefore, the inclusion of the extra adult cannot be a basis for refusing to rent to the family. The inclusion of the extra child, however, would violate the owner's policy and the owner can refuse to rent if the residents insist on including the extra child.

The landlord for the property I manage wants all potential tenants to submit a photo ID with their lease application. Can I require that? (April 17, 2015)

Yes, but you should only use an applicant’s photo ID to verify his or her identity and/or to check on criminal history, rental history, or credit history. You must be uniform and consistent with your photo ID policy, requiring it from all applicants. Never use the photo ID to discriminate against an applicant.

I manage a multi-family property for my client. A prospective tenant has submitted a rental application, and a criminal background check revealed that he is a registered sex offender. Can the property owner refuse to rent his property based on the fact that the prospective tenant is a registered sex offender? (Updated Aug. 21, 2015)

Yes. Sex offenders are not protected under the Fair Housing Act.

Is it a fair-housing violation for a real estate ad to include “City Park is within walking distance” or “Easy walk to neighborhood schools”? Does this language discriminate against handicapped people? (Updated Oct. 10, 2014)

No. Advertisements with this language would not appear to be violations of fair-housing laws. HUD has indicated that ads containing descriptions of properties (e.g., "fourth-floor walk-up" or "walk-in closets"), services or facilities ("jogging trails"), or neighborhoods ("walk to bus stop") do not violate the Fair Housing Act.

What is the Americans with Disabilities Act? Who does it protect? (updated April 28, 2016)

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against people with disabilities and ensures equal access and services to those individuals.

Under the act, a disability is a physical or mental impairment that substantially limits one or more of a person’s major life activities, such as someone’s ability to care for himself, perform manual tasks, walk, see, hear, breathe, learn, or work. A disability includes all forms of mental disorders, alcoholism, HIV, and previous drug addiction. ADA protection does not extend, however, to current illegal-drug users or those who pose a direct threat to the health or safety of others.

Who enforces the Americans with Disabilities Act? (updated April 28, 2016)

The U.S. Department of Justice enforces the ADA through complaints, lawsuits, and settlement agreements. However, private parties may bring lawsuits under the ADA. In addition, the attorney general can file a lawsuit when there is a pattern of alleged discriminations or in cases of general public importance.

What are the penalties for not complying with the Americans with Disabilities Act? (updated April 28, 2016)

A party found in violation of the ADA can face mandatory compliance, monetary damages, and civil penalties. The maximum civil penalty is $75,000 for a first violation under Title III of the ADA and $150,000 for a subsequent violation occurring on or after April 28, 2014.

Does the Americans with Disabilities Act apply to real estate? (updated April 28, 2016)

Yes. Title III of the ADA prohibits public accommodations and commercial facilities from discriminating against people with disabilities. Public accommodations are private entities that own, lease, lease to, or operate a place of public accommodation, which include nearly every type of establishment that provides goods or services to the general public, such as a real estate brokerage office, retail stores, hotels, restaurants, and so forth. This may even include a place of public accommodation located in a private residence. Commercial facilities are privately owned, nonresidential facilities such as office buildings, factories, or warehouses.

There are also ADA Standards for Accessible Design (SAD). These standards apply to new construction and alterations to public accommodations and commercial facilities. The ADA requires that a place of public accommodation remove barriers if the removal is readily achievable even when no alterations or renovations are planned. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense.

Both a tenant and owner of a place of public accommodation are subject to ADA compliance. Brokers representing parties to transactions involving places of public accommodations should recommend that their clients hire experts to conduct an ADA review.

What should a brokerage do to comply with the Americans with Disabilities Act? (updated April 28, 2016)

Real estate brokers must make reasonable modifications in their policies, practices, or procedures to ensure their services and facilities are available to people with disabilities. Reasonable modifications include providing auxiliary aids and services at the brokerage’s expense, if necessary, to meet the needs of people with disabilities. Auxiliary aids may include interpreters, note-takers, assistive-listening devices, audio recordings, or materials in Braille.

In addition, brokers must remove architectural barriers where such removal is readily achievable. Brokers can do this by considering whether they can take measures to provide access to a customer or client with a disability by installing ramps, widening doors, installing grab-bars in toilet stalls, or removing high-pile, low-density carpet. If you cannot do so without much difficulty or expense, you must provide services through alternative methods; for example, arranging meetings at accessible locations such as someone's home or place of business.

A new tenant in my commercial property says I’m responsible for modifications to the structure to make her store compliant under the Americans with Disabilities Act. I think the tenant is responsible for the changes within her storefront. Who should make the modifications? (updated April 28, 2016)

Under the ADA, both a tenant and owner of a place of public accommodation are subject to compliance. However, allocation of responsibility for these changes may be determined (or negotiated) in your lease. Paragraph 15C in the TAR Commercial Lease (TAR 2101) provides that the party designated in the lease (determined by a check box) to maintain and repair the item must complete and pay the expenses of any governmental-required modification, including ADA compliance.

Nevertheless, if the tenant is designated in the lease to maintain and repair an item and does not do so, a property owner could still be held responsible for the storefront’s noncompliance. Both the landlord and the tenant are still liable to third parties.

Are there any construction requirements for my client who is purchasing and remodeling an old commercial property? (updated April 28, 2016)

The ADA Standards for Accessible Design (SAD) apply to newly designed and constructed or altered places of public accommodations and commercial facilities. Public accommodations or commercial facilities that construct new buildings or alter existing structures must do so in a manner that provides accessibility to people with disabilities. A commercial facility includes office buildings, factories, wholesale facilities, or any other location where trade or business is conducted. An alteration is any change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility. New construction or alterations must be made readily accessible unless compliance is virtually impossible.

Throughout the process, your clients should document the steps they take to comply with these laws.

Are there Texas laws similar to the Americans with Disabilities Act? (updated April 28, 2016)

Yes. Chapter 469 of the Texas Government Code, known as the Architectural Barriers Act, and the Architectural Barriers Administrative Rules outline the requirements to ensure that buildings and facilities are accessible to and functional for people with disabilities.

In addition, Texas has standards to be applied during the design, construction, remodeling, and alteration of public buildings and commercial facilities. These standards are known as the Texas Accessibility Standards (TAS), which apply to various parts of a building, such as parking lots, drinking fountains, light switches, bathrooms, and ramps. The Texas Department of Licensing and Regulation enforces the TAS.

In addition to state law, each local government has the authority to adopt and enforce its own building codes.

Are there penalties for not complying with the Texas accessibility requirements? (updated April 28, 2016)

Yes. A party found in violation of the Texas requirements can face an administrative penalty that may not exceed $5,000 per day for each violation. Each day that a violation is not corrected is considered a separate violation.

Before imposing an administrative penalty for a violation, the Texas Department of Licensing and Regulation must notify a person responsible for the building and allow the person 90 days to bring the building into compliance. The Texas Department of Licensing and Regulation may extend the 90-day period if circumstances justify the extension.

I manage rental properties for a client who doesn’t want people smoking on his property. If we deny a potential tenant’s application because he or she smokes, will this violate any federal fair-housing laws? (Updated March 21, 2017)

No, this will not violate federal fair-housing laws. Federal fair-housing laws make it illegal for the landlord to choose tenants based on their race, color, sex, national origin, religion, handicap, and familial status. However, people who smoke are not a protected class. A landlord can refuse to lease to potential tenants who smoke as long as the landlord consistently enforces such prohibition.

Legal Disclaimer: The material provided here is for informational purposes only and is not intended and should not be considered as legal advice for your particular matter. You should contact your attorney to obtain advice with respect to any particular issue or problem. Applicability of the legal principles discussed in this material may differ substantially in individual situations.

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